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Subpoenas served on agencies not exempt from disclosure

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  1. Freedom of Information

    NMU         NEW YORK         Freedom of Information         Jun 18, 2002    

Subpoenas served on agencies not exempt from disclosure

  • New York’s high court unanimously decided that subpoenas are public record despite being issued by the judiciary, which is exempt from the state’s Freedom of Information Law.

The New York Court of Appeals unanimously held June 13 that subpoenas filed against state agencies and kept in agency files are not exempt from disclosure under the state’s Freedom of Information Law.

Newsday sought copies of subpoenas, which were in the possession of the Empire State Development Corp. after they were served by the New York State District Attorney’s Office in its investigation of the agency. The newspaper had first filed a FOIL request for the subpoenas on Nov. 30, 1999.

The trial court in New York City held Aug. 1, 1999, that subpoenas are not immune from disclosure because they are issued by the state district attorney’s office, an agency subject to the FOIL. A mid-level appellate court in New York City, however, reversed the holding in May 2001, arguing that a subpoena is a mandate of the court issued for the court and is not subject to FOIL because the judiciary is exempt from FOIL.

The New York Court of Appeals, the state’s highest court, reversed the mid-level appellate court and held that the state development corporation is not part of the judiciary and is not exempt from the provisions of FOIL. The agency is required to release its copies of the subpoenas, regardless of whether they are mandated by a court.

The court held that, to be withheld, a record must fall squarely within the statutory exemptions to disclosure and that the state must prove that the exemption applies. The Empire State Development Corp. is a state agency subject to FOIL, it said. Since the agency has the subpoenas in its possession in physical form, the subpoenas constitute agency records and are subject to FOIL.

The Court of Appeals reinstated the trial court decision and fines.

The Reporters Committee for Freedom of the Press joined a friend-of-the-court brief in support of Newsday filed by the Associated Press and others.

(In the Matter of Newsday, Inc. v. Empire State Development Corporation; Media counsel: Randy M. Mastro, Gibson, Dunn and Crutcher, NY) MM

© 2002 The Reporters Committee for Freedom of the Press

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